Whether it is a photograph you would like to use on your website, or an artwork you wish to print onto merchandise, it’s always best practice to seek permission from the copyright owner to use their work. What happens when you want to use a work protected by copyright and cannot find the copyright owner, even after making every effort to find them? These are known as orphan works.
Orphan works and how the Copyright Act deals with them
Currently, the Copyright Act does not provide any specific protection for those using orphan works. If a copyright owner turns up even after the user has made reasonable efforts to find them, then the user is at risk of an infringement claim.
This issue has been reviewed in several enquiries, including the Australian Law Reform Commission Inquiry into Copyright and the Digital Economy and Productivity Commission Inquiry into Intellectual Property Arrangements.
The Federal Government’s Copyright Access Reforms – what does this mean?
On 13 August 2020, the Federal Government announced that one of their five reforms to the Copyright Act is the establishment of “a limited liability scheme for use of orphan works”.
The Government indicated that the scheme will benefit the copyright owner and the person using an orphan work. The proposed amendment will allow orphan works to be used without the risk of copyright infringement provided that the person intending to use the work conducts “a reasonably diligent search” and attributes the creator “as far as reasonably possible”.
If the copyright owner does appear then the person using the orphan work will be entitled to use the work, if both parties can agree on “reasonable terms”. If this cannot be achieved, the copyright owner can apply for an injunction to prevent future use of the work.
These reforms will be an area to watch this year, as the Government anticipates the release of an exposure draft bill later this year. It will be interesting to see if and how “a reasonably diligent search” is defined, as they have suggested that specific sectors and industries develop policies about a “diligent search”.
Author: Sharna White, Graduate Lawyer